Citation Nr: 0425548
Decision Date: 09/16/04 Archive Date: 09/23/04
DOCKET NO. 97-23 905A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Joe M. Ragland, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from May 1969 to May
1971.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Jackson, Mississippi, Regional Office
(RO). An October 1996 rating decision found, in pertinent
part, that new and material evidence adequate to reopen
claims for service connection for an acquired psychiatric
disorder had not been submitted.
In March 1999 the Board found that new and material evidence
had not been submitted to reopen a previously denied claim of
entitlement to service connection for an acquired psychiatric
disorder.
The Board's March 1999 decision to the extent that it denied
the benefit sought, was appealed to the United States Court
of Appeals for Veterans Claims (Court). In April 2001 the
Court in light of the Veterans' Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (November 9,
2000), granted the Secretary's unopposed motion to remand,
vacate the Board's decision not to reopen the veteran's claim
for service connection for an acquired psychiatric disorder.
The Board was directed to review the claim with consideration
of the provisions of the VCAA.
In a decision dated in September 2001, the Board granted the
veteran's petition to reopen his claim for service connection
for an acquired psychiatric disorder and remanded this issue
to the RO for further development and adjudication on the
merits. The case was returned to the Board and in a decision
dated in June 2003 the Board, in pertinent part, denied
service connection for an acquired psychiatric disorder on
the merits. The veteran appealed to the Court. In August
2004, the Court vacated that part of the decision concerning
the veteran's claim for service connection for an acquired
psychiatric disorder and remanded the case to the Board in
light of the holding in VAOPGCPREC 3-2003 (July 16, 2003).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The Board finds, in view of the holding in VAOPGCPREC 3-2003,
that the record as it stands currently is inadequate for the
purpose of rendering a fully informed decision as to the
claim of entitlement to service connection for an acquired
psychiatric disorder. Where the record before the Board is
inadequate to render a fully informed decision, a remand to
the RO is required in order to fulfill its statutory duty to
assist the veteran to develop the facts pertinent to the
claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).
Initially, inasmuch as this case involves the matter of
aggravation, the Board observes, as pointed out in the joint
motion for remand, that there has been a change in the
interpretation of the law with respect to the adjudication of
claims involving pre-existing conditions and the application
of the presumption of soundness. Essentially, the law as
recently interpreted under Cotant v. Principi, 17 Vet. App.
116 (2003) and VAOPGCPREC 3-2003 (July 16, 2003), mandates
that, to rebut the presumption of sound condition under 38
U.S.C.A. § 1111, the Department of Veterans Affairs (VA) must
show by clear and unmistakable evidence both that the disease
or injury existed prior to service and that the disease or
injury was not aggravated by service. This interpretation
must be applied upon readjudication of the claim at issue on
the merits.
Specifically, VAOPGCPREC 3-2003 held that the claimant is not
required to show that the disease or injury increased in
severity during service before VA's duty under the second
prong of this rebuttal standard attaches. It was determined
that the provisions of 38 C.F.R. § 3.304(b) are inconsistent
with 38 U.S.C.A. § 1111 insofar as section 3.304(b) states
that the presumption of sound condition may be rebutted
solely by clear and unmistakable evidence that a disease or
injury existed prior to service. It was concluded that 38
C.F.R. § 3.304(b) is invalid and should not be followed.
Regarding the provisions of 38 C.F.R. § 3.306(b), providing
that aggravation may not be conceded unless the preexisting
condition increased in severity during service, it was
determined that this properly implements 38 U.S.C.A. § 1153,
which provides that a preexisting injury or disease will be
presumed to have been aggravated in service in cases where
there was an increase in disability during service. The
requirement of an increase in disability in 38 C.F.R. §
3.306(b) applies only to determinations concerning the
presumption of aggravation under 38 U.S.C.A. § 1153, and does
not apply to determinations concerning the presumption of
sound condition under 38 U.S.C.A. § 1111.
Although several private medical opinions have been offered
for the record, a VA examination to include an opinion as to
whether the veteran's current acquired psychiatric disorder
was incurred in or aggravated by service has not been
conducted. The Board feels that such an examination is
necessary in this case, and therefore one will be ordered.
In view of the foregoing, the Board requests that the RO
accomplish the following directives so as to ensure an
equitable and just determination. Accordingly, the case is
REMANDED for the following action:
1. The RO should furnish the veteran the
appropriate release of information forms
in order to obtain copies of all VA and
private medical records pertaining to
evaluation and/or treatment of his
psychiatric disorder covering the period
June 2003 to the present. After securing
the necessary releases, the RO should
attempt to obtain any records, private
and/or VA, identified by the veteran and
associate them with the veteran's claims
file.
2. Thereafter, the RO should schedule a
VA psychiatric examination to address the
nature and etiology of the veteran's
current psychiatric disorder. After a
review of the veteran's claims folder and
service medical records, the examiner
should provide the following opinions in
conjunction with any/all currently
manifested psychiatric disorders as to
whether it is at least as likely as not
(i.e., at least a 50-50 degree of
probability) that: (a) the disorder
existed prior to service and/or is
congenital or developmental (please
specify); (b) the condition was in any
way chronically aggravated (i.e.,
increased in severity) during service.
Any studies or tests that are needed to
make a determination should be conducted
accordingly. A written rationale and
bases should support all conclusions. It
is critical that the claims folder be
made available to the examiner in
conjunction with the examination.
3. The RO should review the record post-
examination and ensure that the questions
posed in this REMAND have been adequately
addressed. The report should be returned
for completion if any inadequacies are
found. If the examiner recommends further
development (e.g., a request to obtain
additional medical records or conduct
additional tests), such development
should also be accomplished. See Stegall
v. West, 11 Vet. App. 268, 270-71 (1998).
4 After ensuring that all requested
development has been completed, the RO
should readjudicate the veteran's claim
as noted herein. If the determination of
this claim remains unfavorable to the
veteran, the RO must issue a Supplemental
Statement of the Case and provide him a
reasonable period of time in which to
respond before this case is returned to
the Board.
The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
LAWRENCE M. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).